Sunday, 19 June 2016

EU Referendum Briefing 4: Immigration

Steve Peers

Introduction

What impact does the UK’s
membership of the European Union (EU) have on immigration and asylum? This post
examines that controversial issue, looking in turn at migration to the UK by
non-EU and EU citizens.

Non-EU migration

It’s central to distinguish
between non-EU and EU migration in the referendum debate for two reasons. First
of all, because while EU migration is obviously closely connected to the UK’s membership
of the EU, non-EU migration is not.
That’s simply because the UK has negotiated and used opt outs from EU laws on
non-EU migration and asylum, particularly from the EU’s borderless Schengen
zone. This means that the UK can control its borders with the rest of the EU as
regards non-EU citizens, applying its own law to admit them or to refuse them
entry. So it’s false to say that the UK has ‘lost control of its borders’ as
far as non-EU migration is concerned.

As I noted in the first
EU Referendum Briefing, these opt-outs could only be removed by a Treaty
amendment which the UK government and parliament agreed to. Moreover, the
Schengen opt-out can only be removed by a public referendum.

Secondly, the distinction is important
because non-EU migration actually accounts for a greater
share of net migration to the UK than EU migration does, as
demonstrated here:

Moreover, for those who would
like to see net migration to the UK reduced to the level of (say) 50,000 or below
100,000, it is self-evident from this graph that leaving the EU will not, by
itself, accomplish this. Even with no
EU migration, non-EU migration alone would still be well above the 100,000
level, as we can clearly see. Conversely, some would like to see more non-EU
migrants admitted to the UK. Fine: the UK can admit them any time it likes. It’s
entirely the government’s decision not to. But doing so would clearly move the
UK further away from a target of 100,000 migrants, even if the UK leaves the
EU.

A small minority of non-EU
citizens in the UK are covered by EU law. First of all, non-EU family members
of EU citizens are covered by EU free movement law. However, the UK’s renegotiation
deal (as discussed here)
would allow it to restrict their numbers considerably, by tightening the rules
on their entry.

Secondly, the UK opted into the ‘first
phase’ of EU asylum law, in 2003-05. At that time, though, it had a veto over
asylum law proposals, and used it to insist that the EU rules would not change
UK law. Although the ‘Leave’ side claims that the EU court ‘controls Britain’s
asylum system’, in fact the only British asylum cases which the EU court has
decided concern the ‘Dublin’ system of allocating responsibility for asylum
applications between EU countries.

This system allows the UK to
insist that other Member States take back asylum-seekers who have entered their
territory before they got to the UK. If the UK left the EU, it would no longer
be subject to these Dublin rules, unless the EU agreed to sign a treaty with
the UK to that effect. This is pretty unlikely, since the EU has only signed
such treaties with countries like Norway and Switzerland, for the sole reason
that those countries also signed up to be part of the Schengen area at the same
time.

Let’s think about what all this
means in practice. Some non-EU migrants who have travelled through the rest of
the EU do attempt illegal entry into the UK, or would probably like to do so
(those in Calais and Dunkirk, for instance). But why would thatchange if the UK left the EU?
The people concerned wouldn’t suddenly lose all desire to come to the UK. Their
intended illegal entry would not become harder in any way. It would be against
the law – but it already is now. Brexit would not actually move the UK further away
from the continent geographically. People do attempt illegal entry into non-EU
countries, like the USA; and refugees flee to and stay in non-EU countries
(like Turkey, Kenya or Lebanon) too.

Some on the Leave side have
suggested that the UK is vulnerable to sexual assault from non-EU migrants on
the continent. Let’s unpack that. None of the non-EU migrants concerned have
the right of entry into the UK. The UK can simply refuse them entry at the
border. In contrast, the Orlando killer was a US citizen, who could have come
to the UK without a visa, on the basis of the UK’s visa waiver for US citizens.

It’s sometimes suggested that
non-EU migrants in the rest of the EU will all gain EU citizenship and come to
the UK shortly afterward. But as shown in three separate analyses – by Full Fact,
BBC
Reality Check, and Open
Europe – gaining EU citizenship is very difficult for non-EU citizens. It
requires a long wait, a clean criminal record and satisfaction of many other
criteria. If non-EU citizens don’t have legal residence status, or their asylum
application fails, they can be deported. Nearly 200,000 non-EU citizens are in
fact expelled
from the EU every year.

Finally, let’s apply this
analysis to this poster produced by some on the Leave side, unveiled last week:

No one on the poster has any
right to enter the UK. All of them can be refused at the border. Brexit would
change nothing in this regard – besides making it harder to remove to the EU those who do manage to enter illegally and apply for
asylum. The prospect that many of them would gain EU citizenship and move to
the UK is remote.

So the poster is essentially unrelated to the referendum. As
such, it is not an attempt at rational argument - but rather an appeal to irrational
fear.

EU migration

In contrast, as noted already,
the migration of EU citizens is indeed relevant to the referendum debate. Much
of this debate is about the economic impact of EU migration, including its
impact on public services. I’ll leave that side of the debate to the
economists. But there are some important legal issues that should be clarified,
related to access to benefits
and exclusion on grounds of criminality.
The key point is that the free movement of EU citizens, while generous compared
to ordinary immigration laws, is not unlimited.

What are these limits? First of
all, EU citizens have to meet the criteria to stay. The main legislation on the
free movement of EU citizens – known as the ‘Citizens’
Directive’ – provides that EU citizens and their family members can move to
another member state initially for a period of three months. But it also says
explicitly that the EU citizen has no right to any social assistance benefits during
this time. Indeed, the UK has removed
EU job-seekers’ access to job-seekers’ allowance during the first three months
of their stay.

After three months, the Citizens’
Directive says that EU citizens and their family members can stay subject to
further conditions: they are either workers or self-employed; or have
‘sufficient resources’ not to burden the social assistance system, along with
health insurance; or are students in a post-secondary institution, if they have
health insurance and declare that they will not be a burden to the social
assistance system. The EU court has confirmed
that there is no right to stay just to obtain social assistance without ever
working in the host country. Recently it also confirmed
the UK government’s refusal to pay child benefit or child tax credit to those who
did not qualify to stay.

It’s sometimes suggested that ‘500
million people can move to the UK’ under EU free movement law. Yes – if there
were 500 million jobs for them to come and do. Or 500 million university places
available. Or if all of those 500 million people had a small fortune stashed
away. Obviously nothing like those numbers of jobs, university places or self-sufficient
people exist.

What about EU migrants who come
to the UK and look for work? David Cameron has suggested they can be
automatically removed after six months if they don’t find work. This isn’t
correct: the Citizens’ Directive says that they can stay if they ‘can provide
evidence that they are continuing to seek employment and that they have a
genuine chance of being engaged’. But as mentioned already, they are not
entitled to any benefits from the UK while looking for work. Also, they must meet
the criteria of self-sufficiency, otherwise they would not be entitled to stay
after three months anyway.

What if an EU migrant works in
the UK for a time, then becomes unemployed?
It is possible that they can retain status as a (former) worker, and therefore keep access to social
assistance benefits. There are limits to this, however. In particular, if the EU worker has been
employed for less than one year in the UK, he or she would only retain ‘worker’
status for six months after becoming unemployed. At that point the UK can cut
off access to their benefits, as the CJEU has confirmed.

Workers are entitled to equal
treatment as regards benefits, including top-up benefits paid to those in work,
which are a large part of the UK tax and benefit system. However, the deal
on the renegotiation of the UK’s EU membership specifies that if the UK votes
to stay in the EU, the
current EU rules will be changed so that the UK can apply a four-year ban for
workers from other EU member states on in-work benefits.

There renegotiation deal also says that the UK will
be able to limit on the child benefit exported to EU workers with children in
other member states, fixing the rate of that child benefit to the cost of
living in the country of the children’s residence.

After five years’ legal stay on
the basis of the Citizens’ Directive, EU citizens and their family members can
obtain permanent residence status, meaning that they no longer have restricted
access to social benefits.

As for criminality, it is sometimes suggested or inferred that the
UK cannot refuse entry or expel EU migrants on criminal law grounds at all.
This is clearly false. The Citizens’ Directive allows for expulsion, entry bans
or refusal of entry for those who are a threat to ‘public policy, public
security or public health’. There are limits, however. Restrictions must be
proportionate and ‘based exclusively on the personal conduct of the individual
concerned’. People cannot be excluded on general preventive grounds, but on
‘personal conduct’ which ‘must represent a genuine, present and sufficiently
serious threat affecting one of the fundamental interests of society’.

British authorities can check on
an individual’s police record after entry, and can also issue an entry ban
preventing that person from coming to the UK in the first place. For those who
are on the territory, there is greater protection against expulsion over time,
but there is never any absolute ban on expulsion.

It has been suggested that the EU
court has prevented 50 EU criminals from being removed from the UK. This is
false. Any such judgments were made by UK courts or the European Court of Human
Rights.

To prove that point, let’s look at a list
of all
the cases which the EU court decided on EU citizenship in the last five years. There are 53 cases,
and only five of them concern expulsion or exit bans of EU citizens due to
criminality. Of those five cases, just three concern the UK.

In those five cases, the Court
decided that:

a) time spent in prison in the UK by an EU citizen’s family member did not count
toward getting permanent residence under EU law (Onuekwere);

c) the UK does not have to
give an EU citizen information which could compromise national security during
an expulsion proceeding (ZZ case);

d) people with a drug
trafficking conviction can be banned from leaving the country (Gaydorov); and

e) child abusers can be expelled on grounds of ‘public security’ even if
they have been resident for over ten years (I case).

So in every single relevant judgment
in the last five years, the EU Court confirmed that Member States could limit the rights of convicted criminals or terrorist suspects.

The ‘Leave’ side has referred to another
supposed EU court ruling, about the daughter-in-law of a terrorist in the UK.
In fact there is no ruling in that case yet – only the non-binding opinion
of an ‘Advocate-General’. And according to that opinion, the person concerned
can indeed be expelled, if a British court believes that she is a risk to
public security.

It is also possible to expel EU
citizens on grounds that they rely on social assistance.

One final point about the free
movement of EU citizens. The Leave side has referred several times to the possibility
of Turkey joining the EU. It’s sufficient to point out, as I discussed in a previous
Referendum Briefing, that: a) every Member State has a veto on this;
Turkey has agreed 1 out of 35 negotiating chapters, in 11 years of talks; and
there would also be a lengthy period after Turkish accession before the free
movement of persons applied.

The French government should either deal with any asylum applications they make or remove them if they have no legal ground to stay. They have no right to work unless they have an asylum application pending for nine months without a decision. They are obviously non-EU citizens otherwise they would just enter the UK by using their passport. Why would they suddenly stop trying to enter the UK if it left the EU? A Brexit would not mean that the UK moves geographically further away from the continent. Non-EU countries like the USA also have people entering illegally. There's simply no rational link between them and the referendum. Except that if they do make it in to the UK and apply for asylum, it will be more difficult to send them to another Member State since the UK will no longer be covered by the Dublin rules.

They are stuck in Calais because they are not EU citizens. Being in the EU does not mean everyone can 'come and seek work' in the UK as leave campaigners suggest (like the poster behind Farage).

Being in the EU just means that nationals of other Member States can come to the UK and work, pay tax, use NHS for free OR being asked to leave if they fail to find a job after certain time.

This is not one way road however. British citizens also go to other Member States and work, pay tax, use national health system (in many cases it's far better than NHS - Germany, Sweden, Denmark, Finland are just examples), claim benefit, study, live, ...

If people in Calais are not deported, they are France's problem. Even if they enter the UK, there is a good chance that they are returned to France (though if UK left the Union, it would not have this option and would have to keep that migrant/asylum seeker, in some cases forever).